Written by Arnold Ahlert
In a stunning sequences of events that unfolded yesterday, it was revealed the Department of Justice’s (DOJ) efforts to intimidate the media went beyond targeting reporters and editors at the Associated Press. Early in the day, the Washington Post reported that the DOJ not only seized the phone records of Fox News reporter James Rosen, but used his security badge to access records tracking his movements at the State Department, traced the timing of his calls with a Department security advisor suspected of giving him classified information, and obtained a search warrant to access his personal emails. Later in the afternoon another bombshell was dropped: two more Fox staffers, reporter William La Jeunesse and producer Mike Levine, were also targeted by the DOJ.
We begin with Rosen and his involvement with State Department advisor Steven Kim. Kim is a naturalized citizen from South Korea who was indicted in 2009 for telling Rosen that the intelligence community believed North Korea’s response to additional UN sanctions would be another test of its nuclear capabilities. Rosen published a story to that effect on June 11, 2009, noting that the CIA had received the information form sources inside North Korea.
That story was posted the same day a top-secret report was made available to Kim, arms expert with security clearance, and 95 other members of the intelligence community. Using the surveillance techniques described above, the FBI built a case that the information Rosen received came directly from those documents. Yet Kim did not obtain unauthorized access to top-secret information, steal or sell documents or secrets, or collaborate with the enemy. He gave exclusive information to a reporter, a reality that occurs every day. Furthermore, according to the New York Times, four months prior to disseminating the information for which he was indicted, Kim was asked by a State Department press officer to speak to Rosen about North Korea, “and the two began to talk and exchange e-mails,” the paper reported.
Despite this reality, Kim is facing 15 years in prison for violating the Espionage Act.
The Washington Post explains that in building the case against Kim, the DOJ resorted to the aforementioned tactics to build their case. Thus, despite having substantial amounts of evidence gleaned from Kim’s computer and phone records, Justice insisted they needed access to two days’ worth of Rosen’s personal emails, and all of his email exchanges with Kim. Those records necessitated a subpoena.
In an affidavit obtained by the Post, FBI agent Reginald Reyes revealed the DOJ’s rationale for seeking it. “From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information about the Foreign Country” he wrote. “The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”
More importantly, Reyes further declared there was evidence that Rosen had broken the law “at the very least, either as an aider, abettor and/or co-conspirator.” A federal judge signed off on the search warrant.
The Guardian’s Glenn Greenwald explains the implications of targeting Rosen. “Under US law, it is not illegal to publish classified information,” he explains. “That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ–that a journalist can be guilty of crimes for ‘soliciting’ the disclosure of classified information–is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself.”
Fox News’ Brit Hume echoed that assessment. “The Obama-Holder Justice Department is now prepared to treat the ordinary newsgathering actives of reporters to seek information from government officials as a possible crime,” he warned.
As in the AP case, the DOJ again insisted it followed guidelines that require them to obtain information by other means prior to subpoenaing reporters’ phone records. According to the office of Ronald Machen Jr., the U.S. attorney for the District, the government “exhausted all reasonable non-media alternatives for collecting this evidence before seeking court approval for a search warrant.”
According to the Huffington Post, “non-media alternatives” is the key phrase obscuring an inconvenient truth. “The DOJ didn’t contact the AP before secretly obtaining two months of journalists’ phone records, nor did it contact Fox News before getting Rosen’s records, a break with the way the government traditionally deals with media outlets,” it reported.
The U.S. attorney’s statement contained more hair-splitting. “Based on the investigation and all of the facts known to date, no other individuals, including the reporter, have been charged since Mr. Kim was indicted nearly three years ago,” said a released statement.
The key word here is “charged.” Yesterday afternoon, one Fox staffer under DOJ scrutiny became three. In an incredible revelation, the emails of two additional Fox staffers, reporter William La Jeunesse and producer Mike Levine, appeared in an Inspector General’s (IG) report–on the Fast and Furious gun running scandal!
It remains unclear whether those emails were leaked by DOJ employees to whom they were sent, or the DOJ once again issued secret subpoenas to obtain them. ”What we don’t know at this point is if the sources within the Justice Department may have shared those emails with investigators, or if the Fox employees’ accounts were directly accessed by investigators,” Fox News correspondent Shannon Bream reported. ”It’s simply a question we cannot answer at this point.”
We do know that La Jeunesse broke numerous stories outlining the details of Fast and Furious, and Levine was also involved in reporting on the scandal. Yet according to Bream, none of the three men targeted were ever contacted by the administration.
Adding insult to injury, the IG’s Fast and Furious report reveals even more abuse by the DOJ: it confirms that U.S. Attorney for Arizona Dennis Burke intentionally leaked a document aimed at smearing Fast and Furious whistleblower John Dodson. Furthermore, additional emails uncovered by the IG reveal other DOJ officials also discussed smearing Dodson, one of whom was Tracy Schmaler, the former Director of the Department’s Office of Public Affairs. She was forced to resign after it was discovered she was colluding with the radical leftist advocacy group Media Matters to smear those attempting to cover DOJ scandals.
Fox News’ executive vice president of news, Michael Clemente, made it clear the network would not be intimidated by the DOJ. ”We are outraged to learn today that James Rosen was named a criminal co-conspirator for simply doing his job as a reporter,” Clemente said statement. “In fact, it is downright chilling. We will unequivocally defend his right to operate as a member of what up until now has always been a free press.”
Last Wednesday, in testimony before the House Judiciary Committee, Attorney General Holder denied any knowledge of the AP investigation, claiming he recused himself. “I was not the person involved in that decision,” he insisted. “I was recused in that matter as I described in a press conference held yesterday. The decision to issue this subpoena was made by the people presently involved in the case.”
It remains to be seen if Holder is also going to claim ignorance regarding Rosen, La Jeunesse and Levine.
Last Tuesday might have provided a clue. Holder told NPR he isn’t sure how many times the DOJ has seized similar information during his tenure. ”I’m not sure how many of those cases … I have actually signed off on,” Holder said. “I take them very seriously. I know that I have refused to sign a few, pushed a few back for modifications.”
Holder also declined to say whether the the Justice Department’s policy on searches of reporters’ records will be reviewed.
As for the president, last Thursday Obama defended the DOJ’s seizure of AP phone records–even as he failed to mention his administration has pursued more government officials for leaks than all previous administrations combined. “And so I make no apologies,” he said about going after “information that might compromise” the missions of U.S. personnel “or get themselves killed.”
Again, it remains to be seen if the president will also defend the efforts undertaken by the DOJ with regard to the staffers at Fox News.
Despite the attempts by the American left to equate this administration’s appalling behavior with Bush administration supporters calling for prosecution of reporters at the New York Times and other new organizations that exposed top-secret information regarding the eavesdropping on potential terrorist phone conversations, or terrorist financing schemes, no journalists were even accused, much less prosecuted, for revealing top-secret information.
Last week, in an interview with Democracy Now, James Goodale, former general council for the New York Times, revealed the likely motive for the administration’s determination to criminalize reporting of classified information. ”Obama has classified, I think, seven million–in one year, classified seven million documents,” he explained. “Everything is classified. So that would give the government the ability to control all its information on the theory that it’s classified. And if anybody asks for it and gets it, they’re complicit, and they’re going to go to jail. So that criminalizes the process, and it means that the dissemination of information, which is inevitable, out of the classified sources of that information will be stopped.”
That reality raises an extremely important question: who’s going to stop the Obama administration?